From
Tenth Amendment Center
...from
Tenth Amendment Center
This is the second of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy. See Part 1 here.
The Farmer letters are best understood when read in conjunction with Dickinson’s 1764 speech and his 1774 Essay on the Constitutional Power of Great-Britain Over the Colonies in America. The latter tract elaborated The Farmer’s comments about government. This discussion, although drawing principally on The Farmer, will mention all three works.
In political philosophy, Dickinson was essentially a Lockean. Government was founded on contract. It was a public trust erected to further human happiness. Necessary to human happiness was satisfaction of man’s social instinct. Any particular government was constitutional and legitimate only so far as its actions furthered human happiness. In his 1764 speech, Dickinson argued that the “liberties” (e.g., privileges) created by English law are “[f]ounded on the acknowledged rights of human nature.” In other words, the “rights of Englishmen” were positive law manifestations of natural rights.
According to Dickinson, immigrants to the colonies had effectively contracted to recognize the executive authority of the Crown and its authority over foreign affairs. Furthermore, by accepting Britain as the mother country and the moderator of the empire, colonists had impliedly agreed that Parliament could regulate trade with foreign nations and among units of the empire.
But Americans had never ceded their right to be taxed only by their consent, given individually or by their representatives: “We cannot be happy without being free,” Dickinson wrote in Farmer Letter XII. “We cannot be free without being secure in our own property … We cannot be secure in our property, if, without our consent, others may take it away.”
Parliament, where Americans were unrepresented, had imposed the Townshend duties to raise revenue rather than to restrict or regulate trade. As such, they were taxes: “A ‘TAX’ means an imposition to raise money,” Letter IV proclaimed. The Quartering Act, by which Parliament ordered colonial governments to provide lodging and other reports to British troops, also was substantially a tax.
Although the “Farmer” necessarily focused on taxes, he addressed other political questions as well. One was how a free people should respond to governmental usurpation. Citizens should oppose small usurpations immediately to prevent them from acquiring the force of precedent. Letter XII proclaimed, “A perpetual jealousy regarding liberty is absolutely required in all free states … Slavery is ever preceded by sleep.”
However, opposition should proceed cautiously. Letter III contended that citizens must first petition for redress of grievances. Only if petitioning was unsuccessful should citizens proceed to peaceful civil disobedience. Only if both those steps failed, should they employ force.
Dickinson did not believe taxation was the only subject within the exclusive sphere of colonial control. Dickinson cited the court system as another example. Letter XII asserted, “The freedom of a people consists in being governed by laws, in which no alteration can be made, without their consent.” Obviously, this proclamation is not limited to taxes.
In his 1774 essay, Dickinson illustrated by example what he meant by “internal governance.” It included regulation of civil justice, criminal law, manufacturing, religion, the press, and many other activities. His list looks very much like the lists the Constitution’s advocates offeredduring the ratification debates when they itemized the powers the Constitution reserved exclusively to the states.
Like Dickinson’s later writings, The Farmer revealed an interest in the incentives motivating political officeholders. Letter VII observed that measures not affecting parliamentary constituents directly received less attention in the House of Commons than those of importance to constituents. Parliamentary taxation of the colonies in particular created bad incentives. Letter VIII cited as a principle of good government the maxim, Qui sentit commodum, sentire debet et onus: Who gets the benefit should bear the burden.
The “Farmer” supported his case heavily, both in the text and in footnotes. There were citations to the Bible, to political tracts, to leading classical authors, and to works of ancient and modern history. For example, to illustrate how the true incidence of a tax might fall on a person other than the nominal payer, Letter VII related an episode from the reign of the emperor Nero, drawn from the writings of the Roman historian Tacitus.
Incidentally, constitutional originalists may appreciate Dickinson’s preference for relying on older records as legal authority rather than on recent trends or events. His 1774 essay asserted that it is best to resort to “those ‘dead but most faithful counsellors’ (as Sir Edward Coke calls them) ‘who cannot be daunted by fear, nor muzzled by affection, reward, or hope of preferment, and therefore may safely be believed.’ . . . ” This statement should be read in conjunction with Dickinson’s reason for adhering to the rule of law: “[M]iserable is the servitude when the laws are uncertain.”
Rob Natelson
November 01, 2017 at 07:55AM
